Vyhlidal v. Vyhlidal , 309 Neb. 376 ( 2021 )


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  • Nebraska Supreme Court Online Library
    www.nebraska.gov/apps-courts-epub/
    07/29/2021 12:08 AM CDT
    - 376 -
    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VYHLIDAL v. VYHLIDAL
    Cite as 
    309 Neb. 376
    Eric J. Vyhlidal, appellant, v.
    Nessa A. Vyhlidal, appellee.
    ___ N.W.2d ___
    Filed May 28, 2021.     No. S-20-663.
    1. Contempt: Appeal and Error. In a civil contempt proceeding where a
    party seeks remedial relief for an alleged violation of a court order, an
    appellate court employs a three-part standard of review in which (1) the
    trial court’s resolution of issues is reviewed de novo, (2) the trial court’s
    factual findings are reviewed for clear error, and (3) the trial court’s
    determinations of whether a party is in contempt and of the sanction to
    be imposed are reviewed for abuse of discretion.
    2. Child Custody: Appeal and Error. Relocation and child custody deter-
    minations are matters initially entrusted to the discretion of the trial
    court, and although reviewed de novo on the record, the trial court’s
    determination will normally be affirmed absent an abuse of discretion.
    3. Judges: Words and Phrases. A judicial abuse of discretion exists if the
    reasons or rulings of a trial judge are clearly untenable, unfairly depriv-
    ing a litigant of a substantial right and denying just results in matters
    submitted for disposition.
    4. Contempt. The power to punish for contempt of court is a power inher-
    ent in all courts of general jurisdiction such as the district courts of
    this state.
    5. ____. Civil contempt proceedings are instituted to preserve and enforce
    the rights of private parties to a suit when a party fails to comply with a
    court order made for the benefit of the opposing party.
    6. ____. A party to an action who fails to obey an order of the court, made
    for the benefit of the opposing party, is, ordinarily, guilty of a mere
    civil contempt.
    7. Contempt: Proof: Stipulations. In order to prove civil contempt, unless
    the alleged contemptuous acts occurred within the presence of the judge,
    or the parties stipulate otherwise, an evidentiary hearing is necessary
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VYHLIDAL v. VYHLIDAL
    Cite as 
    309 Neb. 376
    so that the moving party can offer evidence to demonstrate both that a
    violation of a court order occurred and that the violation was willful.
    8. Child Custody: Words and Phrases. Under the Parenting Act, the con-
    cept of child custody encompasses both physical custody and legal cus-
    tody, with legal custody focusing entirely on decisionmaking authority.
    9. ____: ____. The term “joint legal custody” is the joint authority and
    responsibility for making major decisions regarding the child’s welfare,
    while the term “sole legal custody” establishes that one party will have
    the final say in such decisions.
    10. Child Custody. In child custody cases, the decision of where a child
    will attend school is a fundamental decision.
    Appeal from the District Court for Garfield County: Mark
    D. Kozisek, Judge. Reversed and remanded for further
    proceedings.
    Loralea L. Frank and Nathan P. Husak, of Bruner, Frank,
    Schumacher & Husak, L.L.C., for appellant.
    Vikki S. Stamm and Sarah M. Hammond, of Stamm, Romero
    & Associates, P.C., L.L.O., for appellee.
    Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke,
    Papik, and Freudenberg, JJ.
    Funke, J.
    Eric J. Vyhlidal appeals the denial of his motion for an
    order to show cause based on Nessa A. Vyhlidal’s relocation of
    their minor child. In denying the motion, the district court for
    Garfield County, Nebraska, found the parties’ parenting plan
    did not require the minor child to attend school in Burwell,
    Nebraska, rather than Springfield, Nebraska. As such, the court
    determined that the order to show cause was not warranted. On
    appeal, Eric argues the district court abused its discretion in
    denying his motion. Because we agree, we reverse, and remand
    for further proceedings.
    BACKGROUND
    Eric and Nessa were married in 2013, and one child was
    born of their marriage. The parties divorced in 2018, and
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VYHLIDAL v. VYHLIDAL
    Cite as 
    309 Neb. 376
    the decree of dissolution dissolving their marriage awarded
    the parties joint legal and physical custody of the minor child.
    At the time of the divorce, Eric and Nessa entered into a mari-
    tal settlement agreement and a parenting plan. The parenting
    plan, in relevant part, provides as follows:
    C. REGULAR TIME-SHARING:
    [Minor child] will be with Mom during the school year,
    except for one night each week from after school until
    8 p.m. Dad will give Mom 2 weeks’ notice of what night
    he will exercise that parenting time.
    The parents agree to alternate weekends, with Dad hav-
    ing [minor child] two weekends in a row from Friday at
    6 p.m. until Sunday at 6 p.m., then Mom having [minor
    child] the third weekend. On the Sundays when Mom
    works at night, Dad will have [minor child] until he drops
    him off for school on Monday morning. The parents shall
    follow a 2 weekend with dad/1 weekend with mom rota-
    tion. This weekend rotation shall resume the first Friday
    after school resumes with dad commencing the weekend
    rotation annually.
    The parents agree that they will work together to adjust
    [minor child’s] schedule if their time with [minor child]
    interferes with the work schedule.
    Neither parent may make plans for the child during the
    other parent’s parenting time without talking with that
    parent in advance and obtaining that parent’s consent.
    ....
    K. DECISION MAKING: The parents will discuss
    matters concerning the child, such as health and med-
    ical, school related problems and decisions, and any
    behavioral or disciplinary issues that could impact both
    households.
    ....
    O. CHANGE OF PARENT’S RESIDENCE: In the
    event that one of the parents plan to change his/her
    residence, that parent shall notify the other parent of
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VYHLIDAL v. VYHLIDAL
    Cite as 
    309 Neb. 376
    such change of residence. If one of the parents is living
    or moving to an undisclosed location because of safety
    concerns, the address or return address shall only include
    the county and state.
    P. CHANGE OF CHILD’S RESIDENCE: Both par-
    ents shall provide notification to the other if s/he plans
    to change the residence of the child. Neither parent may
    move the child outside of the [S]tate of Nebraska without
    permission of the Court. If intending to move that parent
    must first:
    • Make written application to the Court at least 45 days in
    advance, including the proposed changes to the parenting
    time schedule and costs of transportation[;]
    • Give notice of the application and hearing to the other
    parent; and,
    • Establish that the move is in the best interest of the
    child.
    On July 28, 2020, Nessa informed Eric that she intended to
    move with the minor child from Burwell to Springfield. Eric
    objected to the proposed relocation, and the parties attempted
    to resolve the matter through mediation. After mediation failed,
    Nessa proceeded with the move.
    On August 11, 2020, Eric filed a motion, with an accompany­
    ing affidavit, asking the court to issue an ex parte order that
    would require Nessa to keep the minor child in the Burwell
    School District. In his motion, Eric stated that he and Nessa
    share joint legal and joint physical custody of the minor child
    and that Nessa made a unilateral decision to move the minor
    child without his consent. On the same day, Eric filed a motion
    for order to show cause, with an accompanying affidavit, ask-
    ing the court to issue an order requiring Nessa to appear and
    show cause as to why she should not be held in contempt of
    court. Eric also asked the court to award him attorney fees.
    Additionally, Eric filed a motion for writ of assistance, request-
    ing the court to direct law enforcement to take custody of the
    minor child and deliver the minor child to him.
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VYHLIDAL v. VYHLIDAL
    Cite as 
    309 Neb. 376
    On August 12, 2020, the district court entered a one-page
    order, denying Eric’s motions for an order to show cause and
    for a writ of assistance. The court found that the parenting plan
    requires an application to the court and notice of hearing before
    a child may be moved out of the state, but found “no provision
    in the Parenting Plan requiring [minor child] to attend school
    in Burwell.” The district court also noted that Nessa was
    granted custody during the school year except for one night per
    week that the minor child would spend with Eric. Eric timely
    appealed, and we moved the matter to our docket.
    ASSIGNMENT OF ERROR
    Eric assigns, consolidated, that the district court abused its
    discretion in denying his motion for an order to show cause.
    STANDARD OF REVIEW
    [1] In a civil contempt proceeding where a party seeks reme-
    dial relief for an alleged violation of a court order, an appellate
    court employs a three-part standard of review in which (1) the
    trial court’s resolution of issues of law is reviewed de novo, (2)
    the trial court’s factual findings are reviewed for clear error,
    and (3) the trial court’s determinations of whether a party is in
    contempt and of the sanction to be imposed are reviewed for
    abuse of discretion. 1
    [2,3] Relocation and child custody determinations are mat-
    ters initially entrusted to the discretion of the trial court, and
    although reviewed de novo on the record, the trial court’s
    determination will normally be affirmed absent an abuse of
    discretion. 2 A judicial abuse of discretion exists if the reasons
    or rulings of a trial judge are clearly untenable, unfairly
    1
    State on behalf of Mariah B. & Renee B. v. Kyle B., 
    298 Neb. 759
    , 
    906 N.W.2d 17
     (2018); Hossaini v. Vaelizadeh, 
    283 Neb. 369
    , 
    808 N.W.2d 867
    (2012).
    2
    See, Korth v. Korth, ante p. 115, ___ N.W.2d ___ (2021); Schrag v. Spear,
    
    290 Neb. 98
    , 
    858 N.W.2d 865
     (2015).
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VYHLIDAL v. VYHLIDAL
    Cite as 
    309 Neb. 376
    depriving a litigant of a substantial right and denying just
    results in matters submitted for disposition. 3
    ANALYSIS
    Contempt
    [4] The power to punish for contempt of court is a power
    inherent in all courts of general jurisdiction such as the district
    courts of this state. 4 Under 
    Neb. Rev. Stat. § 25-2121
     (Reissue
    2016), “[e]very court of record shall have power to punish by
    fine and imprisonment, or by either, . . . (3) willful disobedi-
    ence of or resistance willfully offered to any lawful process or
    order of said court . . . .”
    [5-7] Civil contempt proceedings are instituted to preserve
    and enforce the rights of private parties to a suit when a party
    fails to comply with a court order made for the benefit of the
    opposing party. 5 A party to an action who fails to obey an
    order of the court, made for the benefit of the opposing party,
    is, ordinarily, guilty of a mere civil contempt. 6 As noted by the
    Nebraska Court of Appeals, in order to prove civil contempt,
    unless the alleged contemptuous acts occurred within the pres-
    ence of the judge, or the parties stipulate otherwise, an eviden-
    tiary hearing is necessary so that the moving party can offer
    evidence to demonstrate both that a violation of a court order
    occurred and that the violation was willful. 7
    In the instant matter, the district court’s denial of Eric’s
    motion for an order to show cause deprived Eric of the oppor-
    tunity to preserve and enforce his rights as a parent with
    joint legal custody and his rights to parenting time. In doing
    so, the court incorrectly focused on Nessa’s compliance with
    3
    
    Id.
    4
    State ex rel. Beck v. Frontier Airlines, Inc., 
    174 Neb. 172
    , 
    116 N.W.2d 281
    (1962).
    5
    Martin v. Martin, 
    294 Neb. 106
    , 
    881 N.W.2d 174
     (2016).
    6
    Rhodes v. Rhodes, 
    210 Neb. 373
    , 
    314 N.W.2d 271
     (1982).
    7
    See deBoer v. deBoer, 
    24 Neb. App. 612
    , 
    892 N.W.2d 879
     (2017).
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VYHLIDAL v. VYHLIDAL
    Cite as 
    309 Neb. 376
    notification requirements and failed to consider Eric’s rights set
    out in the decree of dissolution of marriage.
    Joint Legal Custody
    [8,9] Under the Parenting Act, adopted by the Nebraska
    Legislature, the concept of child custody encompasses both
    “physical custody” and “legal custody,” 8 with legal custody
    focusing entirely on decisionmaking authority. 9 The Parenting
    Act defines the term “joint legal custody” as meaning “mutual
    authority and responsibility of the parents for making mutual
    fundamental decisions regarding the child’s welfare, including
    choices regarding education and health.” 10 In other words, joint
    legal custody is the “joint authority and responsibility for mak-
    ing major decisions regarding the child’s welfare,” 11 while sole
    legal custody essentially establishes that one party will have
    the final say in such decisions. 12
    [10] Here, the parenting plan, developed by the parties and
    approved by the court, clearly indicates that the parties were to
    share joint legal custody of the minor child, and neither party
    was granted exclusive final decisionmaking authority. As a
    result, it is undisputed that the parties share mutual authority
    for making fundamental decisions regarding the minor child’s
    welfare, including choices regarding education, such as where
    the minor child will attend school. We have classified the
    decision of where a child will attend school as a fundamen-
    tal decision. 13
    8
    See 
    Neb. Rev. Stat. § 43-2922
    (7) (Cum. Supp. 2020).
    9
    State on behalf of Kaaden S. v. Jeffery T., 
    303 Neb. 933
    , 
    932 N.W.2d 692
    (2019).
    10
    § 43-2922(11).
    11
    Brown v. Brown, 
    260 Neb. 954
    , 961, 
    621 N.W.2d 70
    , 77 (2000), quoting
    Elsome v. Elsome, 
    257 Neb. 889
    , 
    601 N.W.2d 537
     (1999) (internal quota­
    tion marks omitted).
    12
    See § 43-2922(13).
    13
    See State on behalf of Kaaden S., supra note 9 (stating that father had final
    say on fundamental decisions regarding child’s welfare, such as where he
    attends school, because he was awarded legal custody of the child).
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VYHLIDAL v. VYHLIDAL
    Cite as 
    309 Neb. 376
    Over Eric’s objection and absent application to the court,
    Nessa removed the minor child from the Burwell School
    District and enrolled him into a new school in Springfield.
    Whether Nessa’s unilateral decision to change the child’s
    school is a willful violation of the decree of dissolution of
    marriage entered by the court is a matter to be considered at an
    evidentiary hearing where Eric can offer evidence to demon-
    strate both that a violation of the court order occurred and that
    the violation was willful.
    Thus, we conclude the district court’s decision to deny Eric’s
    motion for an order to show cause was an abuse of discretion
    that unfairly deprived Eric of his rights as a joint legal custo-
    dian of the minor child.
    Parenting Time
    In denying Eric’s motion for an order to show cause, the
    district court noted that Eric’s weekday parenting time with
    the minor child would be impacted. The Parenting Act defines
    “parenting time” as “communication or time spent between the
    child and parent.” 14 However, the trial court’s analysis went no
    further in considering the loss of Eric’s parenting time and who
    was responsible for that loss. The court failed to consider the
    significant interference Nessa’s relocation has on Eric’s parent-
    ing time during the school year.
    In the instant case, the distance between Burwell and
    Springfield is considerable. At oral argument, Nessa conceded
    that the distance is approximately a 4-hour drive. During the
    school year, Eric has parenting time one night each week
    from after school until 8 p.m., in addition to two out of every
    three weekends. Eric also has parenting time with the minor
    child from Sunday until Monday morning when Nessa is
    working at night. Although the parties have agreed to meet
    halfway to exchange the minor child, Nessa’s relocation of
    the minor child makes Eric’s weekday parenting time and his
    14
    § 43-2922(19).
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    Nebraska Supreme Court Advance Sheets
    309 Nebraska Reports
    VYHLIDAL v. VYHLIDAL
    Cite as 
    309 Neb. 376
    Sunday overnight parenting time virtually impossible. Nessa
    conceded at oral argument that since her move, Eric has not
    been afforded his weekday visits. As a result, the district court
    abused its discretion in failing to issue an order to show cause
    as to why Nessa did not willfully violate the decree of dissolu-
    tion of marriage in regard to Eric’s parenting time.
    CONCLUSION
    Joint legal custody means Eric and Nessa share mutual deci-
    sionmaking authority when it comes to making fundamental
    decisions regarding the minor child’s welfare and education,
    such as where the child will attend school. Because Nessa’s
    unilateral decision to relocate the minor child ran contrary
    to the parties’ joint legal custody arrangement and because it
    has deprived Eric of court-ordered parenting time, the district
    court’s denial of Eric’s motion for an order to show cause was
    an abuse of discretion.
    Reversed and remanded for
    further proceedings.